Naves ruled the Board of Regents had acted in a quasi-judicial role and had absolute immunity. I'm no expert in civil procedure, but wouldn't you expect him to rule on that before the trial, like at the summary judgment phase, to spare everyone (including us taxpayers) the expense of a trial?

As a result of the jury's verdict, Naves had the option of reinstating Churchill's job or ordering "forward pay" for him. The verdict should also have resulted in an award of legal fees for Churchill's lawyer. (The legal fees were about $1 million.) In addition to vacating the verdict, Judge Naves refused to order Churchill reinstated and refused to give him any "forward pay." And I guess because the verdict was vacated, no legal fees were awarded. So a jury finds Churchill was improperly terminated for his political views and he gets nothing. Nice going. (/sarcasm.)[More...]

The ruling surprised one legal expert, who said jurors made their feelings about Churchill clear by awarding him only $1 but left no doubt he was wrongfully dismissed. "The jury said, 'Look, we didn't like Churchill, but we liked what you did less,' " said trial lawyer Michael Canges.

Churchill's attorney, David Lane, says he will appeal, but he doesn't sound confident.

I doubt anyone who doesn't know Ward Churchill has a favorable impression of him. But this isn't a popularity contest. It's about granting immunity to officials at a state university for whatever decisions they make...and a judge ruling in such a way that he nullifies and disregards the factual findings of the jury.

I do like Judge Naves, and I don't know much about civil litigation, so I can't say he's wrong. I can say his decision seems unfair and has the potential to chill the right to redress of others who are improperly terminated or treated unfairly by universities.

I guess we can look forward to an avalanche of "legislating from the bench," with Scalia and his Conservative mob having laid out their Political Activist Precedence in Gore v Bush & Ricci.

We're in Big trouble.

Oh, and my gut tells me Obama's best days are behind him (he seems completely lost with the economy) so we may just be looking forward to more Conservatives on the SC after '12 to lock it up for a generation.

...but am not a lawyer, so I can't comment on that portion of the case, though I'm reading this thread with interest. I have to admit as an academic, I was bothered by the jury's verdict considering the history of the case. The university originally stated that Churchill could not be fired for his 9/11 statements, but in looking into his record, there were multiple instances of academic misconduct, including compelling evidence of plagiarism.

In the academy, there are few more serious charges one can bring against a scholar, and all of Churchill's protestations that he was fired because of his comments could not hide an investigation that was widely followed by Professors and adjuncts across the nation.

I'm not saying that this case is without controversy in the academy, but for myself and some that I've talked to, the judges ruling, placing emphasis as it does on the evidence of academic misconduct, jibes with our unease with the jury's verdict

Again, I'm not a lawyer, but I thought I'd put in my two-cents worth since this is a case that many have been watching.

I'm not a lawyer-I'm an academic who has tracked several cases and issues related to academic freedom and tenure for some time, and had some practical experience in internal University investigations.

There is nothing about this ruling at all that surprises me. Past precedents from the Reagan-Bush-Bush appointees have significantly weakened both the right to sue states, the rights to sue employers in general, and the rights of public employees to Constitutional protection in the workplace. The Courts have been particularly hostile to the concept of free speech in one's capacity as a public employee.

I find the ruling to be frightening in its implications. In essence, it sanctions the ability of internal investigations to be the sole, final word. But these investigations are not, and by their nature cannot be, carried out with full knowledge and attention to court room procedures and rules of evidence. Nor for that matter can I see how Boards of Regents, or local Boards of Education in K-12 can be objective judges of their own decisions (though multiple precedents affirm they should be trusted to be).

Suppose matters had gone differently-suppose that the internal committees had exonerated Churchill? The Board was under no legal obligation to accept that outcome. Suppose the committees themselves had violated due process? So in effect, an internal Kangaroo Court process can be sanctioned, leaving one with no final right to appeal.

So, maybe the lawyers can explain to me what is left of tenure. Has not tenure now been effectively converted into a "will to employ" situation, except that the employer has to make a stab-not even in good faith-at having some kind of internal process for tenured faculty?

I have more to say about my views on what Churchill's sins are and are not. But perhaps I'll leave that for another post.

But needless to say, I think I'll mark this day on my calendar as the day the First Amendment in academia died.

I'm curious - since there is some indication that Churchill engaged in serious plagiarism, how do you feel about that and plagarism's impact on tenure? Do you feel the Board's decision was solely based on his comments or the evidence of plagiarism, or a combination of both?

If you read the blog of the proceedings at Race to the Bottom (linked above) I think it is pretty well established as a matter of fact that the motivation of the Board to terminate Churchill was not based not on the misconduct, but on the speech.

As a matter of law, it had to be established to the jury's satisfaction since under Mt. Healthy it is the burden of the plaintiff to show that the motivation for the termination was solely based on the speech. Mixed motive terminations are legal in First Amendment cases.

It's still not clear to me how much misconduct Churchill engaged in. I need to go back and re-read the reports. As I recall, some of the objections were to my way of thinking nitpicky-Churchill did not use pinpoint citations (many citations in the social sciences at any rate are often not pinpoint citations, but general references). Other allegations were more serious-that Churchill deliberately misrepresented sources. IMO, many arguments in academia revolve around interpretation of sources, often to the point where people argue in journals that their opponent egregiously misreads their source material.

The more serious allegation to my way of thinking is that he created citations by ghost writing articles and then citing them as if they were done by another author. I don't recall any specific instances where he represented someone else's contributions as his own (I could be wrong since I'm going by memory).

I think the record is pretty clear. I may disagree with Churchill's statement. I may have no love lost for ethnic studies. But this was a witchunt pure and simple for someone who dared to ask fundamental questions about U.S. foreign policy and power.

I see this whole case as a direct attack on my ability to ask my students to think critically about the underlying assumptions of U.S. foreign policy.

Even if the board had made up its mind to fire Churchill solely because of his speech, it may rely on after acquired evidence of wrongdoing that would have justified his discharge to avoid reinstatement and frontpay. See McKennon v. Nashville Banner Publishing Co., 523 U.S. 532 (1995) (decided under the Age Discrimination in Employment Act. http://www.law.cornell.edu/supct/html/93-1543.ZO.html

"As a matter of law, it had to be established to the jury's satisfaction since under Mt. Healthy it is the burden of the plaintiff to show that the motivation for the termination was solely based on the speech. Mixed motive terminations are legal in First Amendment cases . . . . "

You've misstated the Mt. Healthy standard, which does not require the plaintiff to show that the termination was solely motivated by protected speech. Under Mt. Healthy, it's the plaintiff's burden to prove that the protected speech was a substantial motivating factor underlying the adverse employment action (here, a disciplinary discharge). Assuming the plaintiff satisfies this test, the burden of proof then shifts to the defendant, who must prove the existence of another dispositive reason (besides the protected speech) for the discipline. In other words, the defendant must show that the plaintiff would have been canned even if s/he had never engaged in any protected speech.

Plagiarism was not the issue. Even if he did plagiarize, the instructions and Colorado law said it didn't matter.

Significantly, under Colorado law, the jury that found in his favor did not have to believe that he never committed research misconduct (although he has repeatedly denied doing so). Rather the standard was that to find in Churchill's favor, the jury had to determine that his political views were a substantial or motivating factor in his dismissal, and that he would not have been fired but for the controversy over his opinions.

Well, but one of the points made by the judge in his opinion was that while the jury was only asked to address whether the discharge was motivated at least in part by retaiation for Chruchill's speach, the plagiarism was appropriate for the judge to consider in ruling on whether reinstatement was an appropriate remedy

it's really hard to guess why he chose state court without knowing a lot more than any of us know, but i doubbt that's the answer either because the federal court would have applied substantive state law.

One can posit from the jury awarding a buck that it might well have believed he was a plagiarist among other things but that the plagiarism and other academic misconduct were not the reasons for his firing but merely convenient pretexts.

I obviously don't have all the evidence presented to the jury but that pretty well sums up my suspicion. It's worth noting the guy was hardly a shrinking violet before the little Eichmans speech and both his scholarship and integrity was challenged for years but CU took no action even to investigate until the outrage-- maybe because until then having a celebrity hack professor with a fan club was viewed as a benfit to the school.

As I read the opinion, Churchill never gets to the remedy of reinstatement unless the court of appeals first reverses the ruling on quasi-judicial immunity. The opinion concerns a single section 1983 claim. If as the judge held quasi-judicial immunity bars the claim, the case is over. With the university having won, the court has no power to grant any relief; game set and match to the university.

If, however, the court of appeals finds that the Regents are not a quasi-judicial body, then the jury's nominal damage verdict must be reinstated, and with that, the question of further relief -- reinstatement or front pay -- becomes ripe for decision.

The trial judge correctly notes that reinstatement and front pay are both equitable remedies. In employment discrimination and retaliatory discharge cases, courts do deny reinstatement to prevailing plaintiffs, particularly in higher level positions, with some frequency for the reasons the judge relied on -- the poisoned atmosphere makes it unlikely the employer and the employee can work effectively together, and the finding of research misconduct brings into play deference to academic judgments (e.g., SCOTUS opinion in Grutter v. Bollinger upholding the University of Michigan's race based affirmative action admission policy). Were this a federal lawsuit, the scope of appellate review on that question would be abuse of discretion, and I think on the record recited by the trial judge, Churchill would have a tough time winning.

Front pay is also equitable, and is customary relief when reinstatement is denied. But Churchill has two other problems that may undermine his front pay appeal -- the jury award of only nominal damages, and his failure to seek alternative employment. Whether the latter is sufficient to sustain the trial court's ruling is harder to judge without knowing much more about the record than I do, but given the findings on research misconduct and the refusal of the jury to award actual damages, the going may be tough.

I disagree with the ruling on quasi judicial immunity, but do think it's a close question. I can't tell from the opinion what became of the other claims in this litigation; presumably Churchill also sued under state law, and the opinion makes clear that it is ruling only on his second claim for relief, the first amendment claim under section 1983.

I understand the rationale for suing in state rather than federal court. As the federal courts have become ever more conservative, state courts have become a more hospitable forum for employment claims. I'm surprised the university didn't remove; that's standard defense practice in Florida when plaintiffs file claims in state court based on section 1983 or modern federal civil rights statutes.

Ultimately Churchill's case is a good example of what has happened to civil rights and civil liberties law over the past twenty years. These cases are tough to win, and getting tougher every year (unless you represent victims of so called reverse discrimination).

has the potential to chill the right to redress of others who are improperly terminated or treated unfairly by universities.

That is a huge problem, but I'm equally concerned about the oppressive effect on academic freedom as it pertains to oppositional political speech.

If free-wheeling, critical discourse is stripped from higher education, universities will become like the press wherein 'both sides' of an issue are presented with equal valence - irrespective of any basis in fact.

universities in the process of acquiring my undergraduate and graduate degrees. Since then, I've taught in various capacities at five universities.

Perhaps it's just my bad luck, but none of those nine institutions were "run by liberals". And, in my experience, people lost their teaching jobs when they failed to kiss copious amounts of upper-administration @ss.

that the immunity issue was not decided prior to trial. A purely legal question like this, especially one that would dispose of all liability, would normally be decided before trial. The order does allude to a "Trial Management Order" that specified that this immunity issue would be decided after trial. Maybe it did make sense to do so in the context of all of the claims asserted, I don't know.

The cynic in me, however, tells me that the judge preserved the issue in the hope that the jury would not find in Churchill's favor and the issue would be moot.

But that really has no effect on the merits of Churchill's right to reinstatement, which I think would be based on Colorado law, not federal law. But I would have to review my Section 1983 remedies law to know that.

I want to read the opinion more closely but as reported, this judge really mmade a hash out of this case.

"To avoid this unnecessary cost and complexity, the University agreed to waive its Eleventh Amendment immunity, thus allowing direct claims to be brought against the University and the Board of Regents. In return for the ability to bring direct claims, however, Professor Churchill agreed that the University acquired the ability to assert any defenses that would be available to individual Regents. The parties' Stipulation provides:

The University agrees and stipulates that it shall waive its immunity to claims for damages under the Eleventh Amendment to the United States Constitution to permit the same recovery from the University that might otherwise be had against any of its officials or employees acting in their official or individual capacities, reserving to the University the ability to present the same defenses that would have been applicable to any of its officials or employees acting in their official or individual capacities.
10. Therefore, because quasi-judicial immunity was a "defense that would have been applicable to any of its officials or employees" it is a defense available to the University and the Board of Regents."

If that is so, it should have been the first issue presented and frankly, the stipulation itself makes little sense to me. What purpose does it serve?

entire Stipulation or the Trial Management Order, but this is my best guess: In order to "simplify" the case, and because the University was on the hook for any amounts that the individual regents might be found liable for, the Univeristy agreed to just step in the shoes of all of the regents to defend the claims as a whole. In order to do so, the University agreed to waive the immunity that it would have as under the 11th Amendment.

Maybe Churchill agreed to this because he didn't want to deal with a room full of lawyers, each defending one Regent. The University would have agreed to this because it wanted to take care of its Regents and because it would have to pay the damages, anyway.

However, this does not answer the question of why the so called "quasi-judicial immunity" issue wasn't ruled on before diving into a trial. Maybe part of the case would still have been submitted to a jury, but it would simplify things to narrow the claims.

the stipulation to allow Churchill to sue UC directly in exchange for CU being allowed to assert the quasi-judicial immunity defense the individuals would have makes sense and benefits both sides. But why also arrange to have a trial first and the the ruling on the quasi-judicial immunity?

From a purely legal standpoint that doesn't realy make sense to me from either side
's perspective let alone both.

Just blue skying but maybe the reasons were not "legal" ones per se but broader public opinion ones. Maybe CU thought it would win the trial and it would look better having won on the merits rather than an "evasive defense" such as immunity. Maybe also, Churchhill wanted the publicity from a trial win. lose or draw more than he wanted compensation or reinstatement. Just a guess in the absence of any other plausible guesses.

David Lane is our best civil liberties lawyer. He also does criminal defense and discrimination, employment and other. He tries a lot of cases in both federal and state court.

The composition of a state jury panel from Denver would be far preferable to a federal jury panel. Because our federal juries include the whole front range, they skew very white and conservative. Denver juries are multi-cultural and far more liberal. So, that is one reason he may have wanted a state jury. Another may be the remedy he was seeking -- reinstatement. He didn't want money and told the jury that. He never focused on damages. Maybe for reinstatement, the state forum was better or legally more appropriate.

If we don't resolve it here or if the media doesn't explain it in the next few days, maybe I'll give him a call. He's a friend of mine.

but some were under state contract and tort theories. Federal court can exercise jurisdiction over state claims arising from common facts between common parties through pendent/ancillary jurisdiction but perhaps his lawyer who knows much more about his case and the courts involved felt the federal court might choose not to exercise such jurisdiction.

Also, § 1983 was amended back in 1996 to state judicial officers are immune from injunctive relief as well as damages and maybe the lawyer thought since quasi-judicial immunity was a central issue a fedrral court would be less likely to award injunctive relief (i.e. reinstatement).

it applies as to the § 1983 court regardless of forum but my (admittedly just throwing ideas out there) suggestion is that Churchhill's lawyer may have thought the state contract claims would be harder to sustain to trial in federal court than in state court.

The jury panel in state vs. federal court also is not a totally satisfactory answer, because CU did not seek removal to Federal court. Ordinarily, i'd think that might be over concern about waiving the 11th Amendment defense claim but it did that anyway, so why not seek removal if that's a more hospitable forum for the defendant?

(which raisea ANOTHER question for a civil procedure expert--- since when does tyhe 11th amendmant to the United states constitution apply to actions against a state by one of its citizens in its own court as opposed to in federal court? Isn't that a state sovereign immunity question not a federal constitutional issue? Is there a supreme court case holding the 11th applies to state court actions raising federal claims?

And, we're getting no close to a likely answer for why the parties agreed to have the judge decide the quasi-jdicial immunity question after rather than before an expensive trial.

Obviously, with 3 different types of immunity questions floating around, the procedural questions are hard to understand without an in-depth knowledge of the case.

In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), a majority of this Court invoked the Eleventh Amendment to declare that the federal judicial power under Article III of the Constitution does not reach a private action against a State, even on a federal question. In the Court's conception, however, the Eleventh Amendment was understood as having been enhanced by a "background principle" of state sovereign immunity (understood as immunity to suit), see id., at 72, that operated beyond its limited codification in the Amendment, dealing solely with federal citizen-state diversity jurisdiction. To the Seminole Tribe dissenters, of whom I was one, the Court's enhancement of the Amendment was at odds with constitutional history and at war with the conception of divided sovereignty that is the essence of American federalism.

Today's issue arises naturally in the aftermath of the decision in Seminole Tribe. The Court holds that the Constitution bars an individual suit against a State to enforce a federal statutory right under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq. (1994 ed. and Supp. III), when brought in the State's courts over its objection. In thus complementing its earlier decision, the Court of course confronts the fact that the state forum renders the Eleventh Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole Tribe: a State's sovereign immunity from all individual suits is a "fundamental aspect" of state sovereignty "confirm[ed]" by the Tenth Amendment. Ante, at 2, 3. As a consequence, Seminole Tribe's contorted reliance on the Eleventh Amendment and its background was presumably unnecessary; the Tenth would have done the work with an economy that the majority in Seminole Tribe would have welcomed. Indeed, if the Court's current reasoning is correct, the Eleventh Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State's war debt could easily have been avoided if only the Court that decided Chisholm v. Georgia, 2 Dall. 419 (1793), had understood a State's inherent, Tenth Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law.

The sequence of the Court's positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the Court's efforts to justify its holding. There is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The Court's federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court's history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding.

I am never that comfortable in state court - the judges just are not as good for the most part.

Oh, man, it's just the opposite around here. :(

Of course, msot of my experiences in federal court have been state claims there on diversity jurisdiction, and several of our local federal judges are astonishingly ignorant of state issues. Had one judge ask me why my clients' fault in causing a motor vehicle accident didn't bar him from no-fault benefits . . .

Do you buy that? I don't, but then I've learned not to believe a lot of things lawyers say. Who was it that convinced him he had such strong case that there's no way he would loose and didn't need to take the settlement in the first place?

IMO, Ward is out for Ward, and he wanted a pound of flesh from CU and failing that, a nice settlement. As it stands now, he'll get neither.

Here's the real tragic part; the jury understood the issue, and the law, better than this judge.

As with Bush/Gore, where the majority just didn't like Gore, and twisted themselves like rubber contortionists to invent a cockamamie (one time only) law, this judge just didn't like Churchill, and used Scalia's template for his "reasoning."

...is not a very sympathetic figure at all. It's hard for most people to seperate the man from the issues surrounding him. Especially when the GOP in this state have so heavily branded him as the prototypical wacko liberal responsible for destroying our institutions of higher learning.

People tend to see the "hate speech", not the fact that he too has freedom of speech. They buy into the plagerism charges, whether founded or not. They see arrogance and an unrepentive nature of all that he says and does instead of someone simply trying to get some measure of justice out of the system.

The jury came back in his favor only because it was obvious that the reason he was fired was not what they were told by the lawyers for CU. Even that was done grudgingly--hence the $1 in damages.

From Wikipedia:
"On May 16, 2006 the University released the findings of its Investigative Committee, which agreed unanimously that Churchill had engaged in "serious research misconduct", including falsification, fabrication and plagiarism. The committee was divided on the appropriate level of sanctions.[2] The Standing Committee on Research Misconduct accepted the findings of the Investigative Committee that Churchill had "committed serious, repeated, and deliberate research misconduct", but also disagreed on what sanctions should be imposed.[48] Churchill's appeal against his proposed dismissal was considered by a panel of the University's Privilege and Tenure Committee, which found that two of the seven findings of misconduct did not constitute dismissible offences. Three members recommended that the penalty should be demotion and one year's suspension without pay, while two favored dismissal.[3][49]"
Sure looks like he plagiarized to me.

and had expected to find something suggesting the decision as to the applicability of quasi-judicial immunity was held in abeyance until after trial because in addition to the possibility the jury would find for the defendants on the merits rendering it a moot point there was ALSO the possibility the jury would find for the plaintiff on claims that were not subject to the quasi-judicial immunity defense which would also render reaching that issue unecessary. My quick skim did not locate anything suggesting the latter is true, though.

the stipulations of the party with the university waiving 11th amendment immunity allowing it to be sued directly in exchange for Churchill agreeing that the University would assume the right to assert any defenses the individual Regents could have asserted does not explain to me why the parties agreed to have the quasi-judicial immunity decided after a trial rather than before. the order just says they agreed because it is a matter of law for the judge to decide but that doesn;'t explain why they agreed to have it decided after the trial ratgher than before.

gratuitous flattery. Scott has to appear before Naves as well. If you note, even I said in my post I like Judge Naves personally. It's true, but I didn't have to say it. For some reason, I felt like it was the right thing to do.

...that the reason Naves didn't say anything at the outset of the trial was that he was waiting for the jury to come out with a judgement he could agree with, one that he knew they had to arrive at. When, surprisingly enough (to him), the Jury said, nope, this ain't right, he took matters into his own hands.

He's a judge, not a pre-judge. Can't wait to see what BTD says about this whole mess.

As specified in the pleadings and Trial Management Order, the University preserved the defense that it was immune from liability. The parties agreed that the University would present its immunity arguments after the jury's verdict because judicial immunities are a legal issue to be determined by a court, not a jury.

So says the opinion.

Now,as to why they stipulated to do it that way, I'm mystified. It's usually cheaper in terms of attorney fees and expenses to do the dispostive legal issues first.

Other way around--7th Amendment requires 12-person jury in federal cases--but the amendment is the msot obvious example of a provision of the Bill of Rights the Surpreme Court regards as not incorporated by the 14th Amendment, so it doesn't apply to states.